United States Court of Appeals
For the First Circuit
No. 07-1341
NÉSTOR M. TORRECH-HERNÁNDEZ,
Plaintiff, Appellant,
v.
GENERAL ELECTRIC COMPANY,
CARIBE GE INTERNATIONAL ELECTRIC METERS CORP.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
____________________
Before
Torruella, Baldock,* Circuit Judges,
and Smith,** District Judge.
_____________________
____
Manuel Durán, with whom Manuel Durán Law Office was on brief
for appellant.
Carl Schuster, with whom Lourdes C. Hernández-Venegas, and
Schuster Aguiló LLP, on brief, for appellees.
March 7, 2008
*
Of the Tenth Circuit, sitting by designation.
**
Of the District of Rhode Island, sitting by designation.
SMITH, District Judge. In this age discrimination case,
Plaintiff-appellant Néstor M. Torrech-Hernández (“Torrech”), a
former plant manager for Defendant-appellees General Electric
Company and Caribe GE International Electric Meters Corporation
(collectively “GE”), challenges the entry of summary judgment in
favor of his former employer, GE. Having conducted a careful de
novo review, and discerning no reversible error, we affirm albeit
on grounds different than the District Court.
I. BACKGROUND
Over the course of his twenty-eight year career at GE,
Torrech held various positions within company, including plant
manager at several GE facilities in Puerto Rico. In July 2000,
then-President and General Manager of Caribe GE Paul Sledzick
appointed the forty-nine year-old Torrech, who was at that time
plant manager at GE’s Vega Baja plant, to run the GE facility in
Humacao. Torrech’s appointment to Humacao, while not a promotion,
involved running a larger plant with more employees and included a
more complicated and varied production scheme. Because of
Humacao’s size and its role in GE’s Puerto Rican market, the job of
Humacao plant manager was akin to managing three different plants
within one facility. Just as with each of his previous plant
manager positions, at Humacao Torrech ultimately was responsible
for his plant’s operations and overall results.
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In April of the following year, after a short transition
period, Jeff Sommer replaced Sledzick as President and General
Manager of Caribe GE. During his transition period, Sommer
familiarized himself with the plants under his authority, the
challenges facing those plants, and plans for improvement. Based
on his observations, Sommer believed that the operations in GE’s
Puerto Rico plants needed to improve in five areas (“matrices” in
GE jargon): service, cost out, quality, inventory and
environmental health and safety. As to the Humacao location in
particular, Sommer concluded that the plant was struggling in all
five matrices and lagging behind the other sites. Sommer
communicated his concerns and plans for improvement to Torrech,
specifically his expectations as to service and productivity
improvement. Torrech considered Sommer’s plans for improvement to
be good business ideas.
Nevertheless, over the course of Sommer’s first few
months as President and General Manager, it became clear that
despite Torrech’s professed agreement with Sommer’s ideas, he was
neither implementing the improvement plans nor meeting Sommer’s
expectations. Despite his claim that the Humacao plant was
meeting, if not exceeding, company expectations during his time as
plant manager, Torrech admitted that his work was not what he
wanted it to be. In his deposition, Torrech described his
performance as having its “ups and downs,” and agreed that during
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his time as plant manager, Humacao experienced numerous shut downs.
At the same time, however, Torrech insisted that under his lead,
Humacao was generally on an upward trend. However, to others, it
was apparent that Torrech was resistant to change and new ideas.
Torrech complains of several incidents occurring in the
months following Sommer’s arrival in Puerto Rico as being directly
related to what he perceived to be GE’s hostility towards older
workers. On the evening of Sledzick’s retirement party, held at a
local hotel, Roger Gasaway, to whom Sledzick reported in GE’s
corporate division, remarked to Torrech that there was a perception
at GE that Torrech lacked the energy level he once had. Several
weeks later, on April 18, 2001, while touring the Humacao plant,
Sommer made a similar remark, commenting on Torrech’s lack of
energy. Torrech did not ask Gasaway or Sommer what they meant by
their comments. Rather, Torrech assumed the comments referred to
lack of intensity or enthusiasm. He connects these characteristics
to age by noting that “normally when you grow old you grow slower.”
At the same time, Torrech acknowledges his familiarity with the
“Four E’s,” consisting of “Edge,” “Energy,” Excellence,” and
“Energized,” a common mantra in GE company jargon.
Torrech similarly attributes age-based animus to a
comment made by Sommer during a meeting at the Hard Rock Café in
Old San Juan. According to Torrech, who cannot recall the context
of the statements, Sommer generally referred to the staff as
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“dinosaurs.” Torrech inferred from the comment that Sommer felt he
and other employees were “old, sluggish, obsolete, you know,
outdated.” Another staff member in attendance, Nora Henríquez, a
human resources manager, recalls that Sommer made the “dinosaur”
comment in response to an inquiry about how the corporate
headquarters viewed the Puerto Rico operations. According to
Henríquez, Sommer used the term when explaining the perception that
the organization was less automated than others, that it was not
implementing change in the same manner as other operations, and
that it appeared resistant to new initiatives.
The final incident complained of by Torrech took place on
June 18, 2001. During a tour of the Humacao facility, in a
particularly warm section of the plant, Sommer pointed to an
employee, described by Torrech as an “old person,” and stated: “You
see that person? In Vega Baja no longer –- nobody no longer walks
that slow.” Torrech retorted “In Vega Baja nobody sweats like
that.” Later, in Torrech’s office, Sommer indicated that he was
not happy with how the plant was being run, and that if he did not
see improvement, he would implement changes himself. Although
Sommer never explicitly referenced Torrech’s performance as plant
manager or mentioned the age of any GE employee, Torrech
interpreted Sommer as speaking specifically about him, and,
further, that Sommer was implying that he wanted to replace Torrech
with a younger employee.
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In the evening after the conversation, Torrech called
Henríquez and asked whether there were any plans to replace him.
Although Henríquez denied that there were any such plans, Torrech
volunteered to her that he would be willing to leave GE
“peacefully” if offered a severance package. Henríquez contacted
Sommer to inform him about Torrech’s call. Without ordering or
authorizing Torrech’s termination, Sommer responded that they
should analyze the situation and identify what Torrech wanted.
After Torrech’s phone call, and after getting the go-ahead from
Sommer, Henríquez began to put together initial figures for a
severance package. In the meantime, Sommer updated Gasaway about
Torrech’s phone call, indicated that they would begin to formulate
an “exit plan” for Torrech, and identified Victor Aguilar, a
thirty-three year-old long-term GE Caribe employee, as a possible
replacement. At no time during the course of these or the
preceding events did Torrech, who was well familiar with GE’s anti-
discrimination policy, complain of discrimination or utilize the
internal procedures available to him.
Over the course of the next month, Henríquez began
corresponding back and forth with Torrech about his severance
package. On July 13, 2001, Henríquez sent to Torrech, via e-mail,
a sample waiver form and proposed severance package. She explained
to Torrech that she would soon follow up on other matters,
including resignation announcements, and asked that Torrech get
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back to her with his thoughts. The following Monday, Torrech
responded somewhat cryptically - announcing his disappointment in
the dollar value of the package, but neither rejecting the package
nor commenting on its terms or on Henríquez’s statement about his
resignation. Several days later, Henríquez and Torrech reviewed
together three possible severance packages. After e-mailing
Torrech to inquire as to his thoughts on the proposals, Henríquez
received the following response: “I need the money. It has to be
$150k and on payroll until September 30, 2001. We can make the
announcement tomorrow.” Two days later, at 7:30 a.m. Henríquez
sent to Torrech a draft organizational announcement, and sought his
comments on it. Immediately after, and before the plant-wide
e-mail was finalized or distributed, Torrech sent an e-mail to his
staff and Henríquez announcing his retirement. An official
announcement was released by human resources later that same day.
The following day, and after further discussions,
Henríquez, apparently under the impression that Torrech had agreed
to the terms offered by GE, sent him a confirmation e-mail with a
final severance agreement. In that e-mail, Henríquez gave Torrech
information about his tax obligations, stocks, and pension plan,
and asked that he return certain company property. The next day,
however, on July 25, 2001, Torrech responded curtly - “I am not
going to sign anything. Tell Jeff I will see him in court.”
Despite this declaration, Torrech requested an extension of time
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within which to consider GE’s offer. By August 3, 2001, hearing no
further response from Torrech, Henríquez wrote to Torrech and
reiterated the company’s final severance offer, gave him an
additional week to consider the terms, and informed Torrech that
she would not continue negotiating with him past August 8, 2001.
Immediately, Torrech requested another extension to consider the
severance, and Henríquez granted him additional time until August
15, 2001. On August 10, 2001, after consulting an attorney,
Torrech rejected the severance offered by GE, requested instead a
lump sum payment of $400,000, and informed Henríquez that if the
new sum was not accepted, he wished to return to his position as
plant manager. Torrech also threatened legal action if his terms
were not accepted. GE rejected Torrech’s demands, and removed him
from the company payroll effective August 15, 2001.
Torrech filed the present action in which he alleges that
he was terminated or subject to constructive discharge based on his
age. Torrech brought his suit against GE in the District of Puerto
Rico under the federal Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634; Puerto Rico’s version of the ADEA,
known as Law 100, 29 P.R. Laws Ann. § 146 et. seq.; and Puerto
Rico’s Law 80, 29 P.R. Laws Ann. § 185(a), which prohibits unjust
dismissal.
The District Court granted summary judgment as to
Torrech’s ADEA claim and dismissed without prejudice the remaining
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supplemental state law claims. In doing so, the Court held that
Torrech failed to establish a prima facie case of age-based
discrimination. The Court went on to hold that, even assuming
Torrech could meet his initial burden, and viewing the facts in the
light most favorable to him, on the evidence presented, Torrech
failed to establish that GE’s proffered business reason for his
termination was a pretext for discrimination. Torrech timely
appealed, asserting that the District Court erred in its ultimate
holdings and, in doing so, improperly drew inferences in favor of
GE.
II. STANDARD OF REVIEW
This Court reviews a district court’s grant of summary
judgment de novo. See Iverson v. City of Boston, 452 F.3d 94, 98
(1st Cir. 2006). Summary judgment is proper where there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). As was the
obligation of the District Court below, we must take the facts of
record in the light most flattering to the nonmovant (here,
Torrech) and draw all reasonable inferences in his favor. See
Iverson, 452 F.3d at 98; Dávila v. Corporación de Puerto Rico Para
La Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007). “Once the
moving party avers the absence of genuine issues of material fact,
the nonmovant must show that a factual dispute does exist.”
Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 10 (1st Cir.
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2007) (citation omitted). Summary judgment cannot be defeated,
however, “by relying on improbable inferences, conclusory
allegations or rank speculation.” Id.
III. DISCUSSION
Torrech alleges that he was fired from his position as
plant manager at GE’s Humacao plant because of his age. He
alternatively alleges that if he wasn’t fired, he was
constructively discharged and replaced by a younger employee as a
part of GE’s efforts to rid the Humacao operation of older workers.
In order to succeed on these claims, Torrech must adduce facts
sufficient to support an inference of discrimination, and in doing
so may not rely on bold assertions, unsupported conclusions, or
optimistic surmises. Bennett v. Saint-Gobain Corp., 507 F.3d 23,
30 (1st Cir. 2007). Because the non-movant has the burden of
proof, “the evidence adduced on each of the elements of his
asserted cause of action must be significantly probative in order
to forestall summary judgment.” Id. As correctly found by the
District Court, Torrech’s efforts fail to clear this hurdle.
Before setting forth the appropriate test and
accompanying analysis for establishing a violation of the ADEA, we
must address one of Torrech’s underlying premises for this appeal.
Torrech contends that the District Court, in failing to credit at
face value each of his assertions, impermissibly failed to draw all
inferences in his favor. While it is true that in the summary
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judgment context all reasonable inferences must be drawn in favor
of the non-moving party, the District Court is not obliged to
accept as true or to deem as a disputed material fact, each and
every unsupported, subjective, conclusory, or imaginative statement
made to the Court by a party.1 See Colantuoni v. Alfred Calcagni
& Sons, Inc., 44 F.3d 1, 6 (1st Cir. 1994) (a party resisting
summary judgment may not rest on mere allegations or denials, but
must identify and allege specific facts showing a genuine issue for
1
Torrech’s Counterstatement of Material Facts in Controversy
and Statement of Objections contains numerous statements by Torrech
that, while representing Torrech’s own subjective interpretation of
seemingly innocuous words and actions on the part of Sommer, are
presented as material facts. Such representations include
Torrech’s statements, citing only to his own deposition, that
“Among the ideas that Sommer allegedly brought as GM was the idea
of getting rid of old people in the [Puerto Rico] organization.”
Likewise, as support for his discrimination claim, and as part of
his denial of GE’s assertion that Sommer wanted to improve Humacao
plant operations, Torrech includes the following as a material fact
- “Sommer’s message [when he handed to Torrech his recent,
positive, performance review] was clear: ‘you are an old man and
I do not care about how you have performed or about how Paul
Sledzick thinks you are performing. I am going to get you out
anyway because of your age.’” It is important to reiterate that
these are quotations of Torrech’s own thoughts - not words alleged
to have been spoken by Sommer. Torrech makes numerous similar
assertions and argues that inferences must be drawn in his favor
based on these musings. We are not obliged to take at face value
Torrech’s subjective beliefs when they are not factually based and
merely constitute conclusory, self-serving statements. See Vega v.
Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993) (material
creating a factual dispute “must herald the existence of ‘definite,
competent evidence’ fortifying the plaintiff’s version of the
truth”). Thus, the District Court’s disregard for certain
statements and allegations put forward by Torrech does not
constitute an impermissible failure to draw all inferences in his
favor, nor does it amount to impermissible inference-drawing in
favor of the moving party.
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trial); Velázquez-Fernández,476 F.3d at 10. This is particularly
true where, as here, Torrech submitted as part of his objection to
GE’s motion for summary judgment an affidavit in which he seemingly
contradicts his own deposition testimony and asserts what amount to
nothing more than self-serving, factually-devoid declarations. See
Abreu-Guzman v. Ford, 241 F.3d 69, 74 (1st Cir. 2001) (“a party
opposing summary judgment may not manufacture a dispute of fact by
contradicting his earlier sworn testimony”); Orta-Castro v. Merck,
Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 110 (1st Cir.
2006). Therefore, insomuch as the District Court did not consider
certain statements and assertions put forward by Torrech in support
of his objection to GE’s motion for summary judgment as
constituting reliable evidence or a disputed material fact, there
was no error.
Pursuant to the ADEA, an employer is prohibited from
taking an adverse employment action against an employee who is
forty years of age or older because of that employee’s age. See 29
U.S.C. §§ 623(a)(1),631(a); Bennett, 507 F.3d at 30. “When an
employee claims to have been discharged in violation of the ADEA,
he must shoulder the ultimate ‘burden of proving that his years
were the determinative factor in his discharge, that is, that he
would not have been fired but for his age.’” Davila, 498 F.3d at
15 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir.
1991)). When direct evidence of age discrimination is lacking, an
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employee may utilize the McDonnell Douglas burden-shifting
framework to carry his burden. Dávila, 498 F.3d at 15 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)).
The initial step in the burden-shifting framework
requires the employee to establish a prima facie case of age
discrimination. Velázquez-Fernández, 476 F.3d at 11. To do so,
the plaintiff-employee must set forth facts showing each of the
following: (i) that he was at least forty years old at the time of
the adverse employment action complained of; (ii) that his job
performance met or exceeded the employer’s legitimate expectations;
(iii) that his employer actually or constructively discharged him;
and (iv) that his employer had a continuing need for the services
he had been performing. See id.; Cordero-Soto v. Island Fin.,
Inc., 418 F.3d 114, 119 (1st Cir. 2005). Upon a sufficient prima
facie showing, the burden of production shifts to the defendant-
employer “to articulate a legitimate, nondiscriminatory basis for
its adverse employment action.” Hoffman v. Applicators Sales &
Serv., Inc., 439 F.3d 9, 17 (1st Cir. 2006) (citation omitted).
The employer’s burden is minimal - it “need do no more
than articulate a reason which, on its face, would justify a
conclusion that the plaintiff was let go for a nondiscriminatory
motive.” Dávila, 498 F.3d at 16. Once the employer has satisfied
this requirement, the burden shifts back to the employee, who must
then show, by a preponderance of the evidence, that the “reason
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given by the employer for the discharge is pretextual, and,
moreover, that it is pretext for age discrimination.” Id.
(citation omitted); Velázquez-Fernández, 476 F.3d at 11. “In other
words, the bottom-line question of discrimination vel non comes
front and center.” Dávila, 498 F.3d at 16. At this stage in the
proceedings, “this question reduces to whether or not the plaintiff
has adduced minimally sufficient evidence to permit a reasonable
factfinder to conclude that he was fired because of his age.” Id.
(citing Ramírez Rodríguez v. Boehringer Ingelheim Pharm., Inc., 425
F.3d 67, 78 (1st Cir. 2005)).
Here, it is undisputed that Torrech, who was 50 in the
summer of 2001, satisfies the age requirement of the prima facie
test. As to whether Torrech’s performance met or exceeded GE’s
legitimate expectations, the parties disagree. Torrech highlights
his positive review and accompanying salary increase from January
of the same year as evidence that he was meeting the legitimate
expectations of his superiors. GE, on the other hand, primarily
cites Torrech’s own testimony as to the “ups and downs” experienced
in the Humacao plant during his tenure there, and his admission
that Humacao was “not where I would like [it] to be” on the five
matrices. The District Court considered Torrech’s testimony, along
with evidence establishing certain deficiencies in the Humacao
plant’s productivity under Torrech, to find that Torrech was not
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meeting his employers’ expectations as plant manager at the Humacao
facility.
Although we agree with the District Court’s ultimate
decision to grant summary judgment to GE, we do not agree with its
analysis or conclusion as to the second prong of the prima facie
test. Despite GE’s assertions that the Humacao plant was not
reaching projected financial goals and that Torrech, as plant
manager, was not doing enough to implement necessary change, GE has
been steadfast in its position that but for Torrech’s voluntary
resignation, he would not have been fired. Sommer testified, and
counsel reaffirmed at oral argument, that if Torrech had not
voluntarily left his position, and improvement was not made in the
Humacao plant, Torrech would have been placed on a structured
improvement plan, not terminated. Thus, GE’s tactical claim that
Torrech was not meeting legitimate job expectations is directly at
odds with its assertion that Torrech resigned on his own
initiative, and that he was doing well enough in his role as plant
manager that there were no plans to fire him.
Although it is Torrech’s burden to establish a prima
facie case of discrimination, as the employer, GE cannot play fast
and loose with the facts in order to position itself advantageously
with regard to the burden shifting scheme of the McDonnell Douglas
rubric. By simultaneously proclaiming that Torrech was doing
sufficiently well as plant manager that there were no plans to get
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rid of him, and that he was failing to meet work expectations in
order to legitimize his dismissal, GE improperly attempts to play
both sides against the middle. This juxtaposition of claims belies
the appropriateness of granting of summary judgment on this ground.
Unlike situations in which an employer can document well
an employee’s failure to meet legitimate expectations, in this case
no such documentation exists. On the contrary, as Torrech points
out, the performance review conducted within six months of his
decision to part ways with GE Caribe was positive, and resulted in
a salary increase. Furthermore, while it is true that Torrech
admitted that he could have performed better, this falls far short
of proving that he has failed to meet his employer’s legitimate
performance expectations. An “employee’s perception of himself .
. . is not relevant. [Rather,] [i]t is the perception of the
decision maker which is relevant.” Karazanos v. Navistar Int’l
Transp. Corp., 948 F.2d 332, 338 (7th Cir. 1991) (citation
omitted). There is just no factual support, save Sommer’s after-
the-fact testimony as to Torrech’s alleged failings, for GE’s
assertion that Torrech was not meeting its legitimate expectations.
This, coupled with GE’s assertion that Torrech was performing
sufficiently well enough that termination was not planned for him,
undermines the District Court’s conclusion on this issue. Because
only a minimal evidentiary showing is necessary to satisfy an
employee’s burden of production at this stage, it cannot be said
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that Torrech did not set forth at least minimally sufficient
evidence to overcome summary judgment on this prong of the test.
Davis v. KARK-TV, Inc., 421 F.3d 699, 704 (8th Cir. 2005); Cruz-
Ramos v. P.R. Sun Oil Co., 202 F.3d 381, 384 (1st Cir. 2000)
(burden of establishing a prima facie case is not an onerous one).
Although we disagree with the District Court’s analysis
of the second prong of the McDonnell Douglas rubric, Torrech’s
claim nevertheless falls far short of the mark on the third prong.
Torrech fails to present facts from which a reasonable jury could
conclude that he was discharged; and further, he has come forward
with insufficient evidence of pretext. While the District Court
abstained from making a determination on the third prong of the
McDonnell Douglas test, we think the inquiry is determinative of
Torrech’s appeal. Adverse employment action, for purposes of the
ADEA, includes actual or constructive discharge. On the undisputed
facts of this case, viewed in the light most favorable to Torrech,
we think that it is clear that Torrech resigned his position.
Torrech initiated the talks that lead to his resignation, and he
concedes that he expressed a desire to leave the company in
exchange for a severance package. Torrech presented no facts at
all, aside from his personal belief, to support his assertion that
he was terminated from his position as plant manager. Finally, and
most tellingly, Torrech sent to his employees an unambiguously
worded resignation announcement, without being prompted or
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instructed to do so by GE.2 Although Torrech denies that his
letter was in fact a resignation, this argument is hard to take
seriously. Torrech’s words speak for themselves.
Moreover, even Torrech does not wholeheartedly deny that
he resigned. Rather, he contends that if he did resign, he was
forced to do so under circumstances that amounted to constructive
discharge. It is well-established that “[j]ust as the ADEA bars an
employer from dismissing an employee because of his age, so too it
bars an employer from engaging in a calculated, age-inspired effort
to force an employee to quit.” De La Vega v. San Juan Star, Inc.,
377 F.3d 111, 117 (1st Cir. 2004) (citation omitted). “To prove
constructive discharge, a plaintiff must usually ‘show that her
working conditions were so difficult or unpleasant that a
reasonable person in [his] shoes would have felt compelled to
resign.’” Id. (quoting Lee-Crespo v. Schering-Plough Del Caribe,
Inc., 354 F.3d 34, 45 (1st Cir. 2003)); see also Velázquez-
Fernández, 476 F.3d at 12. “It is not enough that the plaintiff
suffered the ordinary slings and arrows that workers routinely
encounter in a hard, cold world.” De La Vega, 377 F.3d at 117
(citation omitted).
2
Torrech’s unprompted e-mail of July 24, 2001, sent before a
company-wide announcement was made, stated: “After 27 wonderful
years with GE, I have decided to a change of pace and to pursue my
own business opportunity more in tone with my present plan for life
and health condition. You have been a great team and we did great
things together. Thank you for letting me be your leader this past
year. God bless you all. Néstor.”
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In order to establish constructive discharge, Torrech
must show that conditions were so intolerable that they rendered a
seemingly voluntary resignation a termination. In such cases,
“[t]he question is not whether working conditions at the facility
were difficult or unpleasant,” but rather, an employee “must show
that, at the time of his resignation, his employer did not allow
him the opportunity to make a free choice regarding his employment
relationship.” Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135
(10th Cir. 2004). Thus, in order for a resignation to constitute
a constructive discharge, it effectively must be void of choice or
free will. Id.; see also Vega v. Kodak Caribbean, Ltd., 3 F.3d
476, 480 (1st Cir. 1993) (constructive discharge exists where
employer’s actions “effectively vitiate the employees’ power to
choose work over retirement”); Equal Employment Opportunity Comm’n
v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002)
(“When an employer acts in a manner so as to have communicated to
a reasonable employee that she will be terminated, and the
plaintiff employee resigns, the employer’s conduct may amount to
constructive discharge.”).
The gravamen of Torrech’s constructive discharge claim is
that the words and actions of his employer, beginning with Sommer’s
arrival in Puerto Rico, lead him to believe that he would soon be
terminated from his position as plant manager of the Humacao
facility. In support, Torrech cites to the four incidents
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described above - namely, the two times that Torrech was told that
he lacked the same “energy” he once had, the meeting at which
Sommer used the term “dinosaur” when describing the local
operations, and the incident at the Humacao plant during which
Sommer commented on an older employee and then later indicated that
he wanted to make changes. Torrech contends that these comments
led him to believe that older employees were no longer welcome at
GE and that he eventually would have been fired had he not taken
matters into his own hands. Regardless of how Torrech subjectively
felt about these comments (assuming they were made and intended to
be age-related), these incidents alone do not amount to
constructive discharge.3 See Alfieri v. SYSCO Food Servs.-
Syracuse, 192 F. Supp. 2d 14, 24 (W.D.N.Y. 2001) (an “employee’s
subjective interpretation that continued employment would be
uncomfortable and demeaning and would lead to demotion or
termination in the future does not constitute constructive
3
In support for his argument that he resigned because he
otherwise would have been fired, Torrech cites to an e-mail written
by Sommer and sent to Roger Gasaway, Henríquez, and another human
resources representative, in which Sommer describes putting
together an “exit plan” for Torrech. Torrech cites the e-mail as
proof that GE planned to get rid of him. His assertion, however,
is undercut by the rest of the e-mail and the context in which it
was written. The subject e-mail was written two days after
Torrech’s June 18, 2001 phone call to Henríquez in which he
initiated resignation negotiations. The e-mail does not reveal any
nefarious intent on the part of Sommer. Rather, it informs
Gasaway, Sommer’s superior, of Torrech’s decision, and updates him
on the “exit plan” for Torrech, as well as the necessary plans to
fill the open position resulting from Torrech’s departure.
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discharge.”); Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir.
2002) (no constructive discharge where employer advises employee
that employment status is contingent on future levels of
performance and improvement).
There is nothing in the incidents cited that could allow
a rational trier of fact to infer that GE deliberately created
conditions so difficult or unpleasant that Torrech would have felt
compelled to resign. See id. Nor is there any basis to conclude
that a reasonable employee standing in Torrech’s shoes would have
believed that his termination was imminent. See Bragg v. Navistar
Int’l Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998)
(constructive discharge protects the employee who “decides to quit
rather than wait around to be fired”); cf., EEOC, 276 F.3d at 332
(burden of establishing constructive discharge was met where
evidence overwhelmingly pointed to employee’s imminent termination,
including employee’s arrival at work to find her belongings packed
and office being used for storage); Acrey v. Am. Sheep Indus.
Ass’n, 981 F.2d 1569, 1574 (10th Cir. 1992) (upholding finding of
constructive discharge where employee resigned because she was “too
tired” to fight after her employer treated her as “incapable and
uneducable” during her final months of employment, and after being
asked to quit because of her age and “image,” and told that if she
did not quit she would be fired).
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Torrech admits that prior to expressing his interest in
resignation, he asked Henríquez whether there were any plans to
have him replaced, and her answer was no.4 Despite Henríquez’s
assurances, Torrech marched forward with his plan - he announced
that he would resign in exchange for a severance package. There is
no factual support in the record for Torrech’s assertion that if he
had not voluntarily done so, he would have been fired. There is
only Torrech’s claim that this was his subjective belief. This is
too thin a reed to support a constructive discharge claim. An
employee “may not be unreasonably sensitive to his [or her] working
environment.” Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561
(1st Cir. 1986) (citation omitted). The standard for assessing a
constructive discharge claim “is an objective one: it cannot be
triggered solely by the employee’s subjective beliefs, no matter
how sincerely held.” Marrero v. Goya of Puerto Rico, Inc., 304
F.3d 7, 28 (1st Cir. 2002) (citation omitted); see also Calhoun,
798 F.2d at 561 (“[T]he law does not permit an employee’s
subjective perceptions to govern a claim of constructive
discharge.”); Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st
Cir. 2000).
4
GE maintains that there were no plans to fire or otherwise
replace Torrech. Instead, as discussed above, Sommer testified
that if Torrech had remained, and the Humacao plant had continued
to have difficulties in the five matrices, Torrech likely would
have been put on an improvement plan. Such a placement does not
constitute a constructive discharge. See Agnew v. BASF Corp., 286
F.3d 307, 310 (6th Cir. 2002).
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Here, Torrech insists that his personal opinion, and his
perception that he was wanted out of the organization, should
suffice as support for his constructive discharge claim. He relies
on little else to establish that he was compelled to resign by
threat of imminent termination. However, apprehension of future
termination is insufficient to establish constructive discharge -
instead, an employee “is obliged ‘not to assume the worst, and not
to jump to conclusions too fast.’” Agnew, 286 F.3d at 310 (quoting
Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.
1987)). Here, even accepting as true all facts alleged by Torrech,
nothing presented to us evidences any immediate intent on the part
of GE to rid itself of older employees, including Torrech. The
bottom line is that Torrech’s resignation was grossly premature, as
it was based entirely on his own worst-case-scenario assumption as
to his future at GE.
In the alternative, Torrech also alludes to the
negotiations leading up to his eventual removal from the company
payroll as a constructive discharge. He posits that he was subject
to a “take it or leave it” offer, whereby he was forced to choose
between retirement and involuntary termination. Putting aside the
inconsistency of these two theories for a moment, Torrech’s conduct
was nothing short of a deceptive bait and switch tactic, something
which this Court cannot condone. We explain: Torrech first
declared his desire to resign on June 18, 2001. One month later,
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after GE gave him a close to, if not final, offer as to a severance
package, Torrech tentatively indicated his agreement with it,
unilaterally announced his resignation to his employees, and
stopped working. Then, for several weeks following his
resignation, Torrech continued to negotiate with the human
resources representative as to the details of his severance
package. On August 10, 2001, Torrech increased his severance
demand by $250,0005 to $400,000, well beyond the terms discussed,
and nearly agreed-upon by the parties in the previous weeks. More
tellingly, Torrech simultaneously warned GE that if his new demands
were rejected he wanted his job back, and threatened legal action
if his ultimatum were not accepted.6 This is a classic bait and
switch: Torrech initiated interest in a severance arrangement - he
offered his resignation under what appeared to be a reasonable
request for severance (which was met almost fully by GE), resigned
and left work, and then rebuked GE’s good faith offer by suddenly
demanding a sum grossly out of proportion with the previous
discussions. Then, to add insult to injury, Torrech threatened
5
In an e-mail dated July 22, 2001, Torrech sought a lump sum
payment of $150,000 as well as two months’ salary. As of August 3,
2001, GE offered to Torrech a lump sum payment of $150,000 plus one
month’s salary. In his demand letter of August 10, 2001, Torrech
increased his demand to $400,000 and threatened legal action should
his dun be rejected.
6
Upon Torrech’s rejection of the severance package offered by
GE, he was taken off of the company payroll effective August 15,
2001.
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that if he did not receive his sought after plunder, he wanted his
job back - the one from which he had already resigned and for which
a replacement had been selected - or else.
GE’s unwillingness to accede to Torrech’s demands does
not transform Torrech’s resignation into a termination. Torrech
selectively cites this Court’s language in Vega, 3 F.3d at 480, in
which we discussed the circumstances under which an offer of early
retirement may be transformed into constructive discharge. There,
we counseled “a plaintiff who has accepted an employer’s offer to
retire can be said to have been constructively discharged when the
offer presented was, at rock bottom, ‘a choice between early
retirement with benefits or discharge without benefits.” Id.
(citation omitted). This case is clearly distinguishable from Vega
in at least one crucial way - Torrech voluntarily resigned, without
prompting or coercion by GE. See id.
As discussed above, Torrech presents no evidence
suggestive of a plot by GE to rid itself of older employees or
specifically to terminate Torrech. Rather, Torrech’s resignation
was unforced, driven by his willingness to part ways with his
employer in exchange for a severance. GE’s offer, and subsequent
refusal, when faced with Torrech’s bait and switch, either to pay
Torrech’s inflated demand or reinstate him, is not the
“impermissible take-it-or-leave-it choice between retirement or
discharge” that Vega describes. Under these circumstances, an
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employer is not obligated to reinstate an employee who voluntarily
resigned, nor is it obligated to continue severance negotiations
with an employee whose demands were becoming increasingly
unreasonable.
Although the District Court below hesitated to decide the
question of whether Torrech was discharged or resigned because it
found summary judgment was proper on other grounds, we are of the
view, after taking the facts in the light most favorable to Torrech,
that Torrech’s separation from GE was without any serious doubt a
voluntary resignation. Summary judgment was and is warranted on
this ground.
If more were needed, and we believe it is not, Torrech’s
claim also fails for absence of pretext.7 In his briefs before this
Court, Torrech relies on his subjective opinions as to the
motivations and intentions of Sommer and GE, few of which are fact-
based. As detailed above, personal opinion, unsupported by fact,
is not sufficiently probative on the issue of pretext. See
generally Cruz-Ramos, 202 F.3d at 385 n.3. The only facts Torrech
cites to show that GE’s actions were but a pretext for age
discrimination are the allegedly discriminatory comments made to
Torrech. The first two incidents involved comments that Torrech
seemed to lack energy. It is well-established that “energy,” as
7
Torrech concedes that GE meets its burden of articulating a
non-discriminatory reason for terminating him.
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well as similarly defined terms, does not necessarily connote youth
or other age-related characteristics. See Erickson v. Farmland
Indus., Inc., 271 F.3d 718, 730 (8th Cir. 2001) (energy is a
legitimate performance issue not facially related to age); Luks v.
Baxter Healthcare Corp., 467 F.3d 1049, 1055 (7th Cir. 2006)
(employer’s “expressed interest in ‘higher energy’ employees,
although potentially consistent with age discrimination, is not by
itself direct evidence of such discrimination”); Fortier v.
Ameritech Mobile Commc’ns Inc., 161 F.3d 1106, 1113 (7th Cir. 1998)
(“Standard usage and common sense dictate that ‘energetic’ means
active . . . [and] simply cannot support a determination of age
bias.”). Here, Torrech does not allege that the energy comments
were made in the context of an age-related discussion, nor did he
ask Sommer or Gasaway what they meant by their comments. Thus, even
assuming, for purposes of summary judgment, that the comments were
not related to GE’s “Four E” mantra, they are insufficient to
establish discriminatory animus.
As for Sommer’s dinosaur comment, even assuming, despite
witness testimony to the contrary, that Sommer’s statement
communicated a personal belief, it does not on its face evidence
age-related animus or bias.8 Standard usage of the term “dinosaur”
8
District courts outside of the First Circuit have addressed
similar statements when assessing whether the term “dinosaur” is
evidence of pretext. There is little uniformity among the courts,
however, and the conclusions reached largely are based on the
context in which the statements were made. See Bunk v. Gen. Servs.
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does not convey an age-related message. Rather, as defined by
Merriam-Webster, “dinosaur” means “impractically large, out-of-date,
or obsolete.” Merriam-Webster’s Collegiate Dictionary 326 (10th ed.
Admin., 408 F. Supp. 2d 153, 158 (W.D.N.Y. 2006) (employer’s use of
the term “dinosaur” in reference to a co-worker’s age not
sufficient evidence of discriminatory intent, and are merely stray
remarks); Aylward v. Hyatt Corp., No. 03 C 6097, 2005 WL 1910904,
at *18 (N.D. Ill. Aug. 5, 2005) (isolated remark by employer that
there were “dinosaurs” that he would not mind seeing leave, without
specific reference to plaintiff-employee, made months before
plaintiff-employee’s termination, was insufficient to raise a
question of fact on the issue of pretext); Cochrane v. Norton, No.
C-01-2208-SC, 2003 WL 21768006, at *4 (N.D. Cal. July 28, 2003)
(joke comparing employment division to “an amusement park filled
with dinosaurs” was insufficient to establish pretext, and even if
it were to suggest age-based animus, such an ambivalently uttered
comment would constitute “at best weak circumstantial evidence”);
Facciponti v. Wood Co., No. 98-CV-4025, 1999 WL 1073618, at *6
(E.D. Pa. Nov. 12, 1999) (evidence that company management likened
employee to a “dinosaur,” where the record contained virtually no
other evidence of age discrimination, was insufficient to establish
pretext); Berkowitz v. Allied Stores of Penn-Ohio, Inc., 541 F.
Supp. 1209, 1219 (E.D.Pa. 1982) (reference to employee as having
been around “since the dinosaurs roamed the earth,” where employee
had long tenure with the company, insufficient to establish pretext
or discriminatory animus); but see Lewis v. Home Depot U.S.A.,
Inc., No. A-06-CA-058-LY, 2007 WL 1100422, at *6-8 (W.D. Tex. April
10, 2007) (where employer made repeated comments referring to “over
the hill” employees, stating “I just can’t stand to be around old
people,” and “the dinosaurs are going away” and “the dinosaurs are
going extinct,” references were more than stray marks and instead
evidenced pretext); Tsakonas v. Nextel Commc’ns, Inc., No. 04-CV-
1363, 2006 WL 2527998, at *4 (D.N.J. Aug. 31, 2006) (denying
summary judgment where, among other evidence presented on issue of
pretext, employer referred to employee as a “dinosaur”); McInnis v.
Town of Weston, 375 F. Supp. 2d 70, 77 (D. Conn. 2005) (where
employer referred to certain employees as “dinosaurs” and “the old
guys,” and stated he wanted to “get rid of the old guys and hire
young ones,” such remarks were not stray remarks and instead were
sufficient to defeat summary judgment); Kult v. Deluxe Corp., No.
00CV2525MJDJGL, 2002 WL 826412, at *4 (D. Minn. April 26, 2002)
(summary judgment precluded where evidence established that a
company’s hiring managers viewed older employees as “dinosaurs” and
where discriminatory hiring practices were evident).
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2002). This definition comports entirely with Sommer’s explanation,
corroborated by witnesses, that his statement referred to the out-
dated practices and machines still used in the Puerto Rico
factories. Given the context of Sommer’s statement - made during a
manager assimilation meeting at Old San Juan’s Hard Rock Café, in
response to an inquiry as to how corporate headquarters viewed GE’s
Puerto Rico operation, and without any reference to any specific
employee and his or her age - this comment amounts to little more
than a stray remark insufficient to establish discriminatory animus.
See Velasquez-Fernandez, 476 F.3d at 11-12 (“stray workplace remarks
. . . normally are insufficient, standing alone, to establish either
pretext or the requisite discriminatory animus”).
Torrech admits that Sommer’s dinosaur reference “by itself
does not suggest more than Sommer’s feeling toward older employees
in general.” He posits, however, that the comment, Sommer’s desire
for change, and an alleged series of appointments of younger
employees, including his own replacement by a man nearly twenty
years his junior, supports an inference of age discrimination. In
his briefs, Torrech asserts that in Sommer’s first four months as
President and General Manager of Caribe GE, he decreased the average
age of plant manager from forty-one to thirty-four. Aside from
Torrech’s replacement by a man in his early thirties, Torrech does
not provide evidentiary support for his assertion. Torrech
seemingly admits, however, that there was no policy, whether
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explicit or implicit, of excluding employees over the age of forty
or otherwise favoring employees under that age.9 Instead, Torrech
asserts that if appointments of individuals over the age of fifty
were made, Sommer was not responsible for them.
At the end of the day, Sommer’s personal appointment
history is of little importance - what is telling, however, is
Torrech’s failure to deny that many high-level appointments of
individuals within the protected class10 were made in the Puerto
Rico organization during the relevant time frame.11 On the whole,
while Torrech attempts to paint himself a part of a pattern of
discriminatory conduct, his efforts are unsuccessful. Rather, the
9
On the contrary, Torrech asserts that Sommer’s oldest
personal appointee to plant manager was forty-two years old.
10
The Age Discrimination in Employment Act protects persons
forty years of age or older. See 29 U.S.C. § 631(a).
11
GE’s Statement of Uncontested Facts submitted to the
District Court contained three separate paragraphs in which GE
listed, individually, each of Sommer’s plant manager appointments
since he became President and General Manager of Caribe GE,
including the age of each appointee, as well as appointments made
to positions at the same level as or higher than plant manager,
along with the ages of said appointees, as well as Sommer’s
appointments outside of Puerto Rico, of employees in their forties,
fifties, and sixties. In his Counterstatement, Torrech makes a
blanket denial of all three paragraphs of GE’s Statement of
Undisputed Facts. In support, Torrech simply declares that since
Sommer’s arrival he has not appointed any plant manager over the
age of forty-two, and that other appointments of older individuals,
if made, were not done by Sommer. Torrech’s record citations on
these issues do not support his contentions and his blanket,
factually unsupported denial does not create a material dispute of
fact. Furthermore, even a denial does not suffice to establish, as
Torrech attempts, a series of appointments of younger individuals
at or around the time of Torrech’s resignation.
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record is devoid of evidence to support any discriminatory behavior
on the part of GE. On these facts, Torrech cannot show that GE’s
acceptance of his resignation was pretextual.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the District Court’s
grant of summary judgment as to Torrech’s ADEA claims. Supplemental
state law claims remain dismissed without prejudice.
Affirmed.
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